In the aftermath of the Dobbs decision to overturn Roe v. Wade, the worry surrounding state anti-abortion laws — and their potential impact on IVF — has taken center stage. 

If state ‘personhood laws’ define life as beginning at fertilization — and embryos as ‘unborn human beings’ — what will that mean for the future of fertility treatments, from the PGT testing of embryos during IVF to the disposal of surplus genetic material? For those of us who need Assisted Reproductive Technologies (ART) like IVF to grow our families, it’s anxiety-provoking to think about. 

Although IVF is still legal in all 50 states, with some states rushing to pass these ‘personhood’ bills in January, the concern is that they may also inadvertently — or purposefully — ban IVF. 

congressional chamber

In Virginia, for example, a bill has been pre-filed for the 2023 legislative session that states that life begins at fertilization, and it does not contain language that exempts embryos created through IVF. In Florida, state Rep. Michele Rayner (D) told reporters at a conference recently that she expects her Republican colleagues to introduce personhood legislation during next year's session that could put fertility treatments in jeopardy. 

With IVF responsible for about 2% of the babies born annually in the U.S. — and over 600,000 frozen embryos in storage nationally — these wide-reaching state-level abortion bans that contain no exceptions for IVF will affect more people than some may think. Louisiana, for one, already has a law that makes it illegal to discard an unused embryo, unless it fails to develop after a 36-hour period and is deemed nonviable.

Even in the case of abortion bans that do contain clauses stating that their restrictions do not apply to fertility treatments, reproductive health advocates say that those exceptions might not be enough to guarantee access to ART in red states. 

woman with six birth control options to choose from

Thankfully, Democratic senators Tammy Duckworth (D. IL) — a mother of two daughters conceived via IVF — and Patty Murray of (D. Wash), along with Rep. Susan Wild (D. PA), are trying to legally protect the right to IVF by introducing new legislation called the Right to Build Families Act of 2022. And we have to say, it is a breath of fresh air amidst what has felt like a long string of bad news for our reproductive rights in this country. 

The newly minted Right to Build Families Act — if passed — will prohibit limiting any individual from accessing Assisted Reproductive Technology (ART) or retaining their reproductive genetic materials, including gametes. It will also protect healthcare providers who provide ART or related counseling and information. Further, it will allow the Department of Justice to pursue civil action against states that violate the legislation and create a private right of action for individuals and healthcare providers in states that have limited access to ART.  

Michael Thomas, MD, President of the American Society For Reproductive Medicine (ASRM), praised the bill, saying: “The need for access to reproductive healthcare continues to increase and should be a fundamental right for all Americans. Individuals of color as well as people who identify as LGBTQ+ face increased barriers to care. The Right to Build Families Act of 2022, would ensure couples and individuals can, regardless of who and where they are, receive the reproductive medicine care they need. Congress must pass this important bill to protect this basic human right. We celebrate the introduction of this legislation and commend Senators Tammy Duckworth and Patty Murray, and Congresswoman Susan Wild for their leadership.” 

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To those who may be under the impression that state-wide anti-abortion laws couldn’t possibly affect access to IVF, Senator Duckworth warns that anti-abortion activists will not stop at banning abortion and will also seek to limit access to contraception and restrict the use of Assisted Reproductive Technology. "People thought that the Dobbs decision was about abortion. It's about your privacy rights to bodily autonomy,” said Duckworth. 

RESOLVE, the National Infertility Awareness Association, which worked closely with the ASRM and the bill’s champions to draft this historic legislation, stated, “The Right to Build Families Act of 2022 will give everyone the peace of mind that a state legislature cannot restrict access to needed healthcare.” 

While there are several more steps to be taken before this bill is passed, you can make your voice heard, too, no matter which state you live in. Support this new legislation by contacting your Members of Congress, and do your part in making sure that medical treatments such as IVF remain legal and available in every state. You never know — your future family could depend on it.  

Kristyn Hodgdon is the Co-Founder and Chief Creative Officer at Rescripted.